Last Monday week, for the second time, a court held that Pauline Hanson’s tweet broke the law. Plenty will argue about what Hanson said. The harder question sits underneath: whether the state should be enforcing a law against offence at all.
On the day Queen Elizabeth II died, Senator Mehreen Faruqi wrote that she would not mourn the head of what she called a racist empire. Hanson told her to piss off back to Pakistan. Faruqi’s post struck at an institution; Hanson’s struck at a person, by name, and told her she did not belong here. That is a real distinction, but not one that calls for a law. Faruqi sued, and the Full Federal Court upheld the finding that the post breached section 18C of the Racial Discrimination Act.
What the law asks
The court did not have to find that anyone was harmed, only that the words were reasonably likely to offend, insult, humiliate or intimidate, because of race, colour or origin.
Defenders point to section 18D, which exempts what is said reasonably and in good faith in public debate. But Hanson lost on the manner, not the matter: good faith, the judge held, required a conscientious effort to minimise the offence her argument would cause, and she had carelessly disregarded it. So the law does not merely ask whether a citizen meant what she said. It asks whether she said it considerately enough, and sets a judge to mark the answer.
The new blasphemy
English blasphemy law came to turn on manner too. Even the fundamentals of religion could be attacked, one judge held, provided the attack stayed civil, and ‘the decencies of controversy’ were observed. The doctrine was never quite the issue. The spirit of the attack was.
Blasphemy protected a doctrine; this law protects people, and the difference is thinner than it looks. The court found Faruqi insulted and humiliated, and more: that the tweet was likely to wound whole groups, migrants of colour and Muslims, and that this too was the wrong. The case was never only about one woman. It was about what a category may be told.
A group’s dignity matters. But every advance in the standing of the powerless was won by speech the powerful found offensive. Abolition offended. Suffrage offended. Nor is this history. The woman who condemns the genital cutting of girls, or the marrying of them, attacks a practice, and offends a people, a culture, sometimes a faith. In the English town of Rotherham, officials watched the organised abuse of children for years, partly, their own inquiry found, for fear of being called racist. No law was needed there. The offence was deterrent enough. That does not make a slur an act of liberation. It makes offence a poor test. Offence measures the hearer, not the cause, and a law built on it cannot tell the reformer from the bigot. Its exemptions for good faith are the old bargain restated: say what you like about the sacred, so long as a court approves the spirit in which you said it. We have not abolished blasphemy. We have only changed what counts as sacred, and kept the priesthood.
The public square
Thinking a thing wrong is not the same as wanting the state to punish it. The workplace is different: you cannot walk away from the room where you earn your living. The public square is kept so citizens can argue about who they are, and Faruqi and Hanson are two of the most protected people in the country, doing what the square exists for.
There is a line. A threat is not an argument, and neither is hounding a private person; the law already reaches both, as conduct, not speech. Strike offend and insult from the test and the state is out of the business of feelings. What is left is a country where an insult meets a reply instead of a file, where people answer each other instead of reporting each other.
Where it leads
Most of us know someone who has said something ugly. A relative at a table, a joke that curdled. It does not occur to us to sue, and we have all said something we would not want quoted back. Forgiveness is what we extend to those we know, and what we hope for ourselves; the courtroom is what we reserve for strangers. What we do at that table is what a free country would do at scale: forgive what we can, and try to persuade the rest.
There is a decent wish underneath these laws: a gentler country. But gentleness cannot be legislated into being. A law can make a man quiet. It cannot change his mind. The belief, whatever it is, goes underground, where it will not be contradicted, and returns at the ballot box, where no one has to say anything at all.
And a public that has given up on persuading its neighbours to be decent will reach instead for the power to make them behave, and the power to suppress a cruel word is the same power that suppresses any word at all. We hand it over willingly, imagining ourselves among the protected, never among the silenced.
The courts will not take it back for us. Hanson argued the Constitution’s implied freedom of political communication; the Full Court held that section 18C stands. In Britain, on The Times’s custody figures, police make some 12,000 arrests a year over offensive online messages. Most never reach conviction. The arrest is the punishment: the questioning, the cell, the record that outlasts the case. No tyranny was needed, only a statute and a discretion, in a country whose law is nearly our own.
None of this pretends cruel words do not wound. It asks the harder thing: to protect the wounded without appointing anyone to rule on what may be said. No government granted the power to silence only what is vile has ever stopped there. A nation with a priesthood for its sacred things will hear the offence before it hears the argument.
♦ Chaiy Donati is a former President of Queensland Young Labor.
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